| People v Cloyd |
| 2010 NY Slip Op 08489 [78 AD3d 1669] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William Cloyd,Appellant. |
—[*1] Jason L. Cook, District Attorney, Penn Yan (Allison O'Neill of counsel), for respondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered September1, 2009. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of sexualabuse in the first degree (Penal Law § 130.65 [3]). Although the contention of defendant that hisguilty plea was not knowing, voluntary and intelligent survives his valid waiver of the right to appeal,defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacatethe judgment of conviction (see People vKing, 20 AD3d 907 [2005], lv denied 5 NY3d 829 [2005]). Contrary to defendant'scontention, this case does not fall within the rare exception to the preservation requirement set forth inPeople v Lopez (71 NY2d 662, 666 [1988]). Even assuming, arguendo, that defendant'sfactual allocution at the initial plea proceeding may have negated an essential element of the crime, weconclude that County Court rectified any deficiency in the allocution by conducting the requisite furtherinquiry when defendant appeared before the court a second time in connection with the plea. Duringthat second appearance, the court ensured that defendant understood the nature of the charges and thatthe plea was intelligently entered (see id.), based on the admissions of defendant that he hadsexual contact with a child less than 11 years old, that he touched the victim in her "sexual area," andthat he did so for the purpose of sexual gratification (see Penal Law § 130.00 [3];§ 130.65 [3]).
To the extent that the contention of defendant concerning ineffective assistance of counsel surviveshis guilty plea and his waiver of the right to appeal (see People v Nichols, 32 AD3d 1316 [2006], lv denied 8NY3d 848 [2007], reconsideration denied 8 NY3d 988 [2007]; People v Fifield, 24 AD3d 1221, 1222[2005], lv denied 6 NY3d 775 [2006]), we conclude that defendant's contention lacks merit(see generally People v Ford, 86 NY2d 397, 404 [1995]). Present—Smith, J.P.,Peradotto, Carni, Sconiers and Gorski, JJ.